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27

On September 7, 2022, the Court of Justice of the European Union (ECJ) answered some important preliminary questions regarding the Chavez residence document for non-European parents of minor Dutch children.

What preceded this?
In the Chavez Vilchez case (2017), the ECJ ruled that it is a violation of European law if a Dutch minor child is forced to follow his non-European parent to a country outside the EU because that parent is not allowed to reside in the EU. Non-European parents of minor Dutch children could therefore obtain a residence document to care for their child in the Netherlands.

Soon the Dutch case-law followed the line that parents in the Netherlands with a Chavez residence document could not obtain permanent residency or Dutch citizenship. According to the highest Dutch administrative court a Chavez residence document is considered a temporary right of residence, since this it is a dependent right of residence, which in principle ends when the child turns 18.

What changed?
In 2020 the Amsterdam Court submitted preliminary questions to the ECJ regarding the interpretation of the ‘temporary right of residence’. In the September 7 ruling, the Court of Justice states that residence based on a Chavez residence document cannot be considered a temporary right of residence. The Court explains that the line taken by the Netherlands cannot be followed, as the right of residence based on a Chavez residence document can last for a very long time: until the child reaches the age of 18 and in some cases even longer. In addition, the Court states that the dependent status of the right of residence is not relevant in determining whether it is temporary or not.

What does this mean?
As a result of this ruling, non-European parents of Dutch children who have had lawful residence in the Netherlands for at least five years have been given the prospect of continued residence in the Netherlands. If these parents meet all the conditions, they do qualify for a residence permit as an EU long-term resident, which means that the line in case-law about the temporary nature of this right of residence can no longer be maintained.

It is expected that it will become clear in the following months what consequences this ruling has for the possibilities of ‘Chavez parents’ to obtain Dutch citizenship.

If you have questions about changing your residence permit, naturalization, or permanent residency, please contact Elles Besselsen or Mirjam den Besten.

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